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Inmate Vaccine Not In The Near Term? – LISA Newsletter for December 21, 2020

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

INMATES NO PRIORITY FOR VACCINE, ADVISORY PANEL RECOMMENDS

COVIDvaccine201221The Federal Bureau of Prisons received its first shipment of COVID-19 vaccines last Wednesday, and began administering the drug to its correctional officers and health care staffers. The agency said inmates will follow “when additional doses are available.”

And that’s not going to be anytime soon. Earlier this month, the Advisory Committee on Immunization Practices said health care workers and nursing home residents — about 24 million people — should be at the very front of the line for the vaccines. Sunday afternoon, the panel voted 13-1 that next in line should be people 75 and older, who number about 20 million, as well as certain front-line workers, who total about 30 million. Those essential workers include firefighters and police; teachers and school staff; those working in food, agricultural and manufacturing sectors; corrections workers; U.S. Postal Service employees; public transit workers; and grocery store workers.

The committee also voted that behind those groups should be people aged 65 to 74, numbering about 30 million; those aged 16 to 64 with certain medical conditions such as obesity and cancer, that are at higher risk if they get infected with COVID-19, numbering as many as 110 million; and a tier of other essential workers. This group of as many as 57 million includes a wide category of food service and utility workers but also those in legal and financial jobs and the media.

How about vaccine for inmates? The BOP told CBS last week that it is up to Operations Warp Speed to decide when inmates will receive the vaccine. CBS reported, however, that a spokesperson for Operation Warp Speed said the BOP would decide about the timeline.

The National Commission on Covid-19 and Criminal Justice last week recommended that inmates receive priority consideration for Covid-19 vaccines equal to that for police and correctional officers. That recommendation, however, appears to be one of many rejected by the Advisory Committee.

inoculation201221And yet… I received several inmate emails last week (and this is totally unconfirmed) that a handful of BOP inmates at two facilities received vaccine last week. The emails gave no indication of how the inmates were selected for the vaccine. One – from a Texas BOP facility written two days ago – said

well the good news and vibes ran out on the [institution] compound. we ran out of vaccines before we completed even one building. of course the fact that no one was planned to receive it inmate wise. what we did get is hopefully helpful. my building has about 40% done on the first dose.

Another inmate email, received early this morning, independently reported that some inmates at the same institution (“at least a couple hundred,” the report stated) received vaccine.

An inmate in a separate Texas facility reported Friday night:

I thought you’d be interested in reports that 100 inmates received their first dose of the vaccine today. Some of these are known personally to me, so I can confirm that they were sent to the clinic and given a shot. They were told that they would be called back to the clinic in 21 days for their second dose. Reportedly, all staff who wanted the vaccine have received their first dose.

One can reasonably infer from the emails that perhaps the vaccine being administered was left over after staff inoculations had been completed, and – having been thawed – had to be used within five days.

[Later note: An inmate from a North Carolina facility reported by email on Monday, December 21, that he had gotten the vaccine: “Once the staff here at the [institution] received their vaccinations if they chose, there were doses left over. Instead of letting those doses go to waste, the staff chose to offer them to some of the inmates based on their medical conditions.  There were probably around 30 or so in my housing unit, including myself, that were offered the vaccine.  Most of us chose to take it.  I, myself, am thankful to the staff for making that decision and offering them to us and I felt that I needed to let you know that some of us are getting it.” ]

More than two dozen members of House of Representatives last Wednesday demanded details about how inmates will be vaccinated for COVID-19, questioning whether the most vulnerable prisoners will have priority access.

In a letter to BOP director Michael Carvajal and Centers for Disease Control and Prevention chief Dr. Robert Redfield, the 26 lawmakers, led by Rep. Bobby Scott (D-Virginia), wrote,

The BOP has provided informal information regarding the vaccine distribution plan. We are deeply concerned that the current plan places the most vulnerable incarcerated individuals who have a cancer diagnosis, chronic kidney disease, chronic obstructive pulmonary disease, heart conditions, compromised immune systems, sickle cell, diabetes, and individuals 65 years or older in priority level 3 behind incarcerated individuals in minimum security facilities who are in open bay housing and are currently listed in priority group 2. Incarcerated individuals with these types of medical conditions are at a high risk of complications if they contract COVID-19 as it spreads through federal prisons yet are slated to receive the vaccine after prison staffers in phase 1 and other incarcerated individuals listed in phase 2.

Despite reporting that over 1,500 inmates “recovered” from COVID-19 within just a few days of each other, the BOP still reported having 5,881 active inmate cases,1,694 sick staff, COVID in 126 BOP facilities and 180 dead inmates (up 13 in one week). The BOP has tested 62% of all inmates at least once, with the positivity rate continuing to ratchet up. As of last Friday, 36% of all inmate tests are positive for COVID.

Still, the trend apparently suggests that the latest BOP outbreak has peaked.

BOPCOVID201218

As of last Friday, Sandstone, Florence, Loretto and Pekin all reported over 200 inmate COVID-19 cases, another 12 facilities had more than 100 cases, and another 20 joints had 50 or more. Loretto had been written down from over 600 cases earlier in the week as inmates are declared to be recovered.

A cautionary note about those “recovered” inmates. Of the 13 inmates who died last week, two – a 64-year old man at FCI Victorville I and a 72-year old man at FCI Lompoc – had contracted COVID-19 months ago, and were considered “recovered” before getting much sicker and dying. In fact, the State of Michigan Dept of Health said last week that it is currently investigating 115 of “recovered” state inmates testing positive for COVID-19 three months after they were believed to be COVID-free.

New York Post, Federal prison workers to start getting vaccinated Wednesday (December 14, 2020)

Chicago Tribune, Federal panel says people over 75, essential workers should be next in line for COVID-19 vaccine as Moderna shots begin shipping out (December 20, 2020)

CBS News, Federal prisons to prioritize staffers for COVID-19 vaccine and give to inmates when more doses are available (December 18, 2020)

National Commission on Covid-19 and Criminal Justice, Experience to Action: Reshaping Criminal Justice After COVID-19 (December 14, 2020)

Letter to BOP from Rep. Robert C. Scott (D-Virginia) (December 15, 2020)

Reuters, U.S. lawmakers press prison authorities on inmate COVID-19 vaccination plans (December 16, 2020)

Detroit Free Press, State reviewing possible COVID-19 reinfections after 115 prisoners test positive twice (December 12, 2020)

– Thomas L. Root

Whither Vaccine? – Update for December 10, 2020

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

VACCINE DELIVERY TO FALL SHORT WHILE DEBATE OVER INMATE ACCESS INTENSIFIES

The Washington Post reported last Saturday that federal officials have slashed the amount of coronavirus vaccine they anticipate will ship in December because of constraints on supply, sending local officials into a scramble to adjust vaccination plans and highlighting how early promises of a vast stockpile before the end of 2020 have fallen short.

COVIDstockpile201210

And if that were not enough, it now appears that before Pfizer’s coronavirus vaccine was proved highly successful in clinical trials last month, the company offered the Trump administration the chance to lock in supplies beyond the 100 million doses the pharmaceutical maker originally agreed to sell the government. The New York Times reports, however, that the administration, according to people familiar with the talks, never made the deal, “a choice that now raises questions about whether the United States allowed other countries to take its place in line.”

papertiger201210

The President issued an executive order on Tuesday that proclaimed other nations will not get the U.S. supplies of its vaccine until Americans have been inoculated. But, the Times said, “the order appears to have no real teeth and does not expand the U.S. supply of doses…”

Instead of the delivery of 300 million or so doses of vaccine immediately after emergency-use approval and before the end of 2020, as the administration had originally promised, current plans call for availability of around a tenth of that, or 35 to 40 million doses. And that is out of a maximum delivery of 100 million Pfizer doses, enough to inoculate 50 million people.

Meanwhile, The New York Times reported a week ago that as public health officials are scrambling to develop guidelines for the equitable allocation of limited vaccine supplies, “inmates are not ranked in the top tiers of the federal criteria, even though some of the largest outbreaks have occurred in the nation’s prisons.” The CDC advisory committee has prioritized correctional officers and others who work in jails and prisons for the first phase of immunizations, a decision the Times says “raises a chilling prospect: another prison outbreak that kills scores of inmates after the only preventive was reserved for staff.”

corona200313Several groups, including the American Medical Association, are calling for coronavirus vaccines to be given to inmates and employees at prisons, jails and detention centers, citing the unique risks to people in confinement — and the potential for outbreaks to spread from correctional centers, straining community hospitals. “We aren’t saying that prisoners should be treated any better than anybody else, but they shouldn’t be treated any worse than anybody else who is forced to live in a congregate setting,” said Dr. Eric Toner, co-author of a report on vaccine allocation published by the Johns Hopkins Center for Health Security.

But a political backlash has been brewing over the idea that inoculating people behind bars should be a priority. “Killers and rapists set to get COVID vaccines before Granny,” a recent Fox News segment proclaimed.

Curiously (and this should be treated as probably true but unconfirmed) two inmates from two very different locations – FCI Petersburg Medium and FMC Carswell – told me yesterday that BOP health services personnel were surveying inmates at each location to determine their willingness to be vaccinated.

Can we pronounce the word “optimism,” boys and girls?

The Washington Post, Trump’s Operation Warp Speed promised a flood of COVID vaccines. Instead, states are expecting a trickle (December 5, 2020) 

The New York Times, Trump administration officials passed when Pfizer offered months ago to sell the U.S. more vaccine doses (December 7, 2020)

The New York Times, Prisons Are Covid-19 Hotbeds. When Should Inmates Get the Vaccine? (December 2, 2020)

– Thomas L. Root

Higher and Higher… – Update for December 8, 2020

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

BOP COVID CASES BREAKS 5,000 AS LEGISLATORS GRILL CARVAJAL

rocket-312767BOP inmate COVID-19 cases passed a grim milestone last Friday, rocketing past the 5,000 mark. That number jumped another 10% over the weekend. As of last night, the BOP had ended with

•     5,634 ill inmates (up 15% from the week before);

•    1,613 sick staff (up 12% from last week);

•    COVID in 128 BOP facilities; and

•    163 dead inmates.

The BOP has tested 57% of all inmates at least once, with the positivity rate climbing from 25% – where it has hovered for months – to over 32%.

To put this in perspective, one out of every five federal inmates who has ever had the virus has it right now.

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Two BOP facilities have more than 300 sick inmates, Loretto and Texarkana, three more with over 200 ill, andand another 16 with over 100 COVID cases. USP Tucson has 75 sick staffers, with Pollock in second place with 60 and Oklahoma FTC with 50.

Last Wednesday, BOP Director Michael Carvajal testified before the House Subcommittee on Crime, Terrorism, and Homeland Security. It wasn’t pretty. After he delivered his prepared statement – a BOP puff piece about how in response to COVID-19, the BOP had “implemented a decisive and comprehensive action plan to protect the health of the inmates in our custody, the staff, and the public, to the greatest extent possible, consistent with sound medical and corrections principles” and how the BOP’s “procedures have proven effective as this is evidenced by the steep decline in our inmate hospitalizations, inmates on ventilators and deaths” – the knives came out.

fired161227Subcommittee Chair Karen Bass (D-California) quoted a Dept of Justice Inspector General report that found up to six days elapsed before FCI Oakdale inmates who had been exposed or tested positive for COVID-19 were isolated, and wondered how that squared with the BOP’s representations. Carvajal insisted that the situation in Oakdale was not representative of BOP policies, and blamed the then-warden. “In a nutshell, we had some leadership issues there,” he said. “Our regional director had some concerns about the procedures not being enforced or followed. In essence, without getting into details, I removed the leadership.”

Carvajal pushed back at Subcommittee demands the BOP institute a blanket staff testing plan (arguably a good idea considering that 43% of all staff who have had COVID since March are sick right now). He argued that the BOP could not compel employee COVID tests. But a written statement filed with the Subcommittee by Shane Fausey, national president of the BOP employees’ unions, disputed that, complaining that despite unions’ urging, the BOP “has repeatedly refused” to offer voluntary coronavirus testing to staff members at the prison facility where they work. Instead, Fausey said, “employees who believe they were exposed or might be infected with the coronavirus must get tested on their own time and in their own communities.” For good measure, Fausey also blasted BOP and Marshals Service for transferring inmates without adequate quarantining, which he said has put “the health and safety of tens of thousands of federal correctional workers, their families, and their communities at risk.”

covidtest200420In a separate exchange with Representative Sheila Jackson Lee (D-Texas), the director said he could not force his employees to get tested for Covid-19, although the BOP waives insurance copays for those tests.

“I understand civil liberties, civil rights the Constitution, but you’re talking about individuals coming into contact with incarcerated persons who can’t walk away, who can’t get out,” Jackson Lee said. “And that means they are endangering themselves, their families at home.”

Rep. Hakeem Jeffries (D-New York) braced Carvajal about underutilization of compassionate releases. Before filing for a compassionate release, an inmate must first ask the BOP to bring the motion for him or her, a vestige of the procedure before the First Step Act broadened the law to let inmates bring their own motions. Jeffries noted that while about 2,000 such motions had been granted by courts, the BOP had approved only 11 requests when inmates first asked to the agency to do so. Jeffries asked Carvajal, “10,929 requests out of 10,940 requests were rejected, does that sound right?”

Carvajal said the BOP has been intentionally careful. Given public safety considerations, Carvajal said, the BOP’s approval rate of 0.1% makes sense: it is “not a process that should be rushed.” This suggests that the courts, with compassionate release approval rates that are 182 times higher than the agency, are profligate.

The day before the hearing, Government Executive magazine published a sobering piece in which BOP employees said that staffing shortages and COVID-19 are creating a crisis. “If not for COVID, we would still have augmentation but it wouldn’t be as crazy,” Joe Rojas, a union official. “It’s already a dangerous workplace with COVID and it’s made worse by understaffing.”

quit201208Several employees said they expect that attrition to accelerate in the coming months. Rojas said he and many others have stuck around in part due to a retention bonus the BOP offered to veteran workers in recent years. That incentive is disappearing next year, he said. A BOP spokesman said the Bureau is providing incentives “where appropriate” and taking other steps to boost recruiting. He noted the agency has hired 3,400 employees in 2020, a sharp uptick over recent years.

Already some of the prisons in the Southeast, Rojas said, are operating at 70% or less of their expected workforce level. “You can’t run a prison like that. The seams are going to burst,” he said. “I’m afraid.”

DOJ, Statement of Michael D. Carvajal, Director Federal Bureau Of Prisons (December 2, 2020)

Courthouse News Service, Officials Spar Over Covid Spread Through Prison System (December 2, 2020)

Statement of Shane Fausey, National President, Council of Prison Locals (December 2, 2020)

Government Executive, Federal Prison Employees Fear Staff Shortages and Mass Reassignments as COVID-19 Cases Spike (Dec 1)

– Thomas L. Root

COVID Peaks, Vaccine on the Horizon – Update for December 1, 2020

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

BOP HITS UGLY COVID MILESTONE AS VACCINE IS PROMISED

With yesterday’s numbers, the Bureau of Prisons continues into new  COVID-19 record with 4,792 sick inmates, topping previous records of 3,461 on May 11 and 4,454 on July 23. The inmate death toll hit 157 last week, with one fatality – Louis Rector at FMC Butner – having been declared recovered in July, only to be hospitalized two months later and then to linger for two months before dying.

BOPCOVID201201A record 1,414 BOP staff are sick. COVID is in 126 BOP facilities. Fifteen joints have more than 100 inmates sick, and four have more than 200 COVID cases. The BOP says it has tested 54% of all inmates at least once, with a positivity rate of 29%.

The big news now is about vaccine. The Associated Press reported last week that the BOP would be “among the first government agencies to receive the coronavirus vaccine, though initial allotments of the vaccine will be given to staff and not to inmates, even though sickened prisoners vastly outnumber sickened staff,” citing documents it had obtained from the BOP.  AP said the BOP has “been instructing wardens and other staff members to prepare to receive the vaccine within weeks, according to people familiar with the matter. The people could not discuss the matter publicly and spoke to the AP on condition of anonymity.”

reinfection200831Government Executive reported that the BOP “would provide vaccines to all staff and inmates under the interim plan. Employees and inmates at private contract facilities are not slated for inclusion. In a recent memorandum for staff obtained by Government Executive, the bureau said employees, rather than inmates, would receive ‘initial allocations.’ CDC will determine the size of that allocation. The memo also provided a glimpse into the process federal workers will follow to receive a vaccine from their agencies: staff will follow a specific link that will allow them to register and, once registered, they can set up an appointment at their facility’s health services department.”

The government has not yet approved any vaccine, a necessary step before any doses can be delivered. Several vaccine makers have asked for expedited permission, and CBS reported yesterday that vaccine may be available by Christmas.

Advocates say the federal government should be doing more to ensure vulnerable, at-risk inmates have access to the vaccine as soon as possible. “If true, it’s a disgrace,” David Patton, the head of the federal defender office in New York, said of the Bureau of Prisons plan. “Prisoners are among the very highest-risk groups for contracting COVID-19. The conditions of confinement make social distancing and proper hygiene and sanitation nearly impossible. The government should certainly prioritize prison staff, but to not also prioritize the people incarcerated is irresponsible and inhumane.”

AP said the BOP “has been accused of missteps and scattershot policies since the virus reached the U.S. earlier this year.”

A prime example may be the one reported by WUSA-TV, Washington, DC, last week. Fabian Tinsley died of COVID last April at Butner, but no one told his family Fabian’s niece discovered news accounts of his death when she Googled him in August.

johndoe201201WUSA-TV said, “Officials with the Federal Bureau of Prisons failed to inform Tinsley’s family of his death in April. Staff from the North Carolina facility only notified next-of-kin after reports from the CBS News affiliates in Raleigh and Washington. “I think they thought we wouldn’t care enough, and that’s been the problem,” said Latesha Boyd, Tinsley’s niece. “We have no closure, that’s how I feel.”

The TV station reported that “After the communications breakdown became apparent in August, Boyd said Butner staff called frequently with apologies. Yet the family said they could only describe their current situation as being trapped in a bureaucratic runaround, with no firm details on where to find Tinsley’s body.”

In an October statement from the BOP, “a spokesperson said communication with the family continues,” WUSA-TV reported.

BOP, Inmate Death at FMC Butner (November 23, 2020)

Associated Press, Federal prisons to prioritize staff to receive virus vaccine (November 23, 2020)

Government Executive, Several Federal Agencies to Deliver COVID-19 Vaccines to Employees Directly (November 23, 2020)

CDC, COVID-19 Vaccination Program – Interim Playbook for Jurisdiction Operations (October 29, 2020)

WUSA-TV, 224 days after a DC man died of coronavirus, his family still has no idea where to find his body (November 26, 2020)

– Thomas L. Root

BOP and COVID: The Best of Times, The Worst of Times – Update for November 24, 2020

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INMATES CATCHING COVID, BOP CATCHING HEAT

Last week, we said the Bureau of Prisons was feeling the third wave of coronavirus. The numbers bear us out.

Inmate cases, which have averaged 2,065 active cases a day since Sept 1, hit 3,933 last night. That’s the highest number since the end of July, an increase of 117% since Nov 1 and 16% over a week ago. At the same time, BOP staff cases hit an all-time high of 1,264, up 17% in a week. The virus is again present in all 122 BOP facilities. The BOP has tested 53% of its inmate population, with 28% returning as positive.

BOPCOVID201124

The Dept. of Justice Inspector General reported a week ago that BOP officials made a number of mistakes that hobbled the agency’s ability to control the spread of COVID-19 at FCI Oakdale, Louisiana. The DOJ’s internal watchdog found Oakdale officials “failed to promptly” implement COVID-19 screening protocols, took too long to limit inmate movement and failed to properly quarantine and isolate inmates, among other issues. Specifically, Oakdale lacked adequate personal protective equipment and left inmates with the virus in their housing units for a week without being isolated.

Oakdale was the initial BOP prison to experience a serious COVID-19 outbreak, and chalked up the first of what is now over 150 federal inmate deaths.

Failure201124Predictably, the BOP criticized the report, arguing its officials and staff complied with guidance to screen staff and inmates for COVID, took proper steps to limit inmate movement during the pandemic, and provided proper protective gear and guidance to employees on how to take precautions to protect against the spread of the disease.

Drug manufacturer Pfizer has applied for emergency use authorization for its COVID-19 vaccine from the Food and Drug Administration, to be followed by competing vaccine maker Moderna on December 4, and AstraZenica/Oxford about a month later. An emergency use authorization is a fast-track vaccine authorization that can be processed much more quickly than normal approval. The FDA is expected to take one to three weeks to go through the application and make a decision on issuing the emergency authorization. USA Today reports that vaccine could be approved by the week of December 14.

By the end of December, the government expects to have about 40 million vaccine doses available for distribution. The Pfizer and Moderna vaccines both require two doses given between 21 days apart. The BOP has reportedly told the inmate population that it is working to obtain vaccine for its staff and inmates. However, correctional facilities are currently reported to be included in “phase two” of the vaccine rollout, despite the fact healthcare professionals and prisoner advocates argue that they should be given a higher priority.

“We’re hearing promising news that we are one of the targeted areas to get the first dosage—at least our staff is in the first group, and then our patients with higher risk factors would be next,” said Thomas Weber, CEO of a private company providing medical services to state prisons and detention centers. “However, we have a concern about the availability of enough vaccines and how they’re going to distribute them.”

money160818Finally, 15 members of Congress, all Democrats, wrote to DOJ and the BOP last Tuesday to ask about the changing policies for medical copayments in federal prisons during the pandemic where there have been widespread coronavirus outbreaks. “On March 30, the BOP issued a memorandum waiving the requirement that incarcerated individuals pay ‘copay fee[s] for inmate requested visits to health care providers.’ That waiver expired on October 1, and it is unclear whether that waiver has been extended, given the continued spread of COVID-19 throughout the nation and in federal prisons,” they wrote. “It is also unclear whether the BOP has considered making its copay waiver permanent.”

Office of Inspector General, Remote Inspection of Federal Correctional Complexes Oakdale and Pollock (November 17, 2020)

Reuters, U.S. Justice Dept watchdog: Louisiana prison officials botched COVID-19 pandemic (November 17, 2020)

Atlanta Journal-Constitution, Federal prison in Louisiana left inmates with virus in housing for week (November 18, 2020)

USA Today, When could the first COVID-19 vaccines be given in the US? (November 18, 2020)

Letter to Attorney General William Barr and BOP Director Michael Carvajal (November 16, 2020)

– Thomas L. Root

Third COVID Wave Breaking Over BOP – Update for November 16, 2020

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BOP TRANSFEREES BRING COVID TO FORT DIX, SENATORS SAY

The third wave of COVID-19 sweeping the country apparently does not intend to exempt the Federal Bureau of Prisons. Active inmate cases, which have averaged 1,900 a day since September 1, have shot up last over the last two weeks, hitting 3,163 last Friday. That’s the highest number of BOP cases since the end of July. At the same time, BOP staff cases hit an all-time high of 1,049. The virus is present in 119 of 122 BOP facilities.

BOPCOVID201116

Last week, Government Executive magazine reported that the BOP “has experienced perhaps the worst outbreak of any federal agency per capita, with about 7% of its workforce contracting the virus. All told, more than 2,500 bureau employees have tested positive. Nearly 20,000 federal prisoners have also contracted COVID-19, or about 14% of the federal inmate population.”

The death toll has mounted as well. Three more federal inmates deaths were reported since November 6th, one at USP Tucson and two at the Springfield medical center. Citing a National Commission on COVID-19 and Criminal Justice study, the Washington Post reported last week that “when adjusted for age, sex and ethnicity, the mortality rate in federal prisons is twice that of the general population.”

The BOP has reported that as last Friday that it has tested half of all inmates at least once. The number testing positive inched up a point last week to 26%. One out of four tests has been positive ever since the BOP began reporting testing last spring.

reinfection200831The hottest BOP facilities for COVID-19 last week were USP Tucson (Arizona) with 363 inmate cases, and FCI Fort Dix, New Jersey (233 cases). These were followed by FCI Beaumont Low (Texas), USP Thomson (Illinois), FCI Bastrop (Texas), the FMCs at Butner, North Carolina, and Springfield, Missouri, USP Marion (Illinois), FCI Yazoo Medium (Mississippi), FCI Gilmer (West Virginia), FCI Greenville (Illinois) and FCI Jesup (Georgia), all with 100 or more cases.

The Fort Dix epidemic is especially troublesome, with Congressional criticism raining down on the BOP even as employee unions finger-point. Senators Robert Menendez and Cory Booker (both D-New Jersey) wrote to BOP Director Michael Carvajal last Monday, accusing the BOP of negligently transferring COVID-19 infected prisoners from FCI Elkton to Fort Dix, thus introducing the disease to Fort Dix. The senators said, “It is clear that BOP does not have an effective plan to ensure COVID-19 positive inmates are not transferred between facilities…”

The Philadelphia Inquirer reported last week that “as recently as mid-October, US Attorneys opposing compassionate release motions by Fort Dix prisoners argued that ‘the BOP has taken effective steps to limit the transmission of COVID-19’.” Now, the paper said, “videos purportedly taken by a prisoner inside Building 5812 and circulating among family members show a unit in chaos — debris scattered and trash overflowing — a byproduct of a shortage of staff and healthy inmate workers, according to family members.”

The BOP says all prisoners are quarantined for 14 days and tested prior to being moved. The receiving prison is also to test and quarantine new prisoners for two weeks, which is what Brian Kokotajlo, a BOP union official at Fort Dix, says happened there. He’s skeptical about how things were handled at Elkton. “They said the inmates were tested when they left Elkton, but personally I don’t believe that to be true,” Kokotajlo said. “If they tested them at Elkton, how they made it on the bus and how they made it to us and became positive in a six-hour drive across the state of Pennsylvania, nobody seems to be able to figure that out.”

fingerpoint201116But Joseph Mayle, the Elkton union chief, blamed false negatives produced by COVID-19 rapid testing for infected prisoners being sent to Fort Dix. “My staff here, they’re not going to throw inmates on a bus without testing them,” Mayle said. “If that’s what they’re saying, that’s not what’s happening.”

BOP spokesman Justin Long issued a statement denying that Elkton transfers caused the Fort Dix outbreak. “Contact investigations indicate the infections were not the result of this inmate movement but rather may have originated from the community,” Long said.

In Pekin, Illinois, local residents protested this past weekend, complaining that the BOP is failing to protect inmates from coronavirus and asking the agency to release eligible inmates to home confinement. Dozens of protesters gathering Saturday, “demanding inmate get proper medical care, nutrition and hygiene needed to keep safe from the virus,” a local TV station reported.

The group also alleged that “the BOP’s website is not keeping up-to-date information, saying the 66 confirmed cases within the Pekin prison is a false number,” WMBD-TV reported. “They believe that number is well over 100.”

Washington Post, Prisons and jails have become a ‘public health threat’ during the pandemic, advocates say (November 12, 2020)

Government Executive, Coronavirus Cases Are Spiking at Federal Agencies (November 12, 2020)

Philadelphia Inquirer, COVID-19 outbreak infecting hundreds at Fort Dix is ‘escalating crisis,’ N.J. senators warn (November 10, 2020)

VICE NEWS, Federal Prisons Keep Turning Into COVID Nightmares: ‘Everyone Looks Like Death’ ( November 12, 2020)

WMBD-TV, Pekin community members say federal prison system isn’t taking COVID-19 seriously (November 14, 2020)

– Thomas L. Root

COVID’s a Mess in America… the BOP is No Different – Update for November 10, 2020

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

THIRD WAVE BREAKING?

Over the past few weeks, the BOP’s official COVID-19 count has not been climbing with the rest of the nation’s, but late last week, the numbers took off, suggesting a third wave may be breaking over the BOP as well as the rest of the country.

plague200406As of last night, the BOP reported 2,418 sick inmates, up a whopping 24% from the Friday before. There are a record 953 sick staff, up 5% last week. Ominously, six federal inmates died last week, including four at MCFP Springfield (Missouri), one at FCI Big Spring (Texas), and one in a private prison.

The current outbreak at FCI Fort Dix illustrates the virulence of COVID. WHYY Radio reported last week that “in October no inmates tested positive. On Thursday, there were 214 positive cases, according to a report from the Federal Bureau of Prisons. It’s the second-highest amount of active cases out of every system in the country.”

After an inmate complained to a federal court that Elkton prisoners transferred to Fort Dix “were placed in a unit that later had 10 inmates test positive for COVID-19,” a federal judge last week ordered the government to “provide details on how the prison has mitigated the spread of COVID-19.”

The Appeal last week ran an interview with Dr. Homer Venters, who has provided expert testimony in several suits against the BOP on COVID in prisons, most recently at Lompoc. Venters was especially critical of the availability of health services:

All these detention settings have ‘sick call’ and that’s the primary way for people to report COVID symptoms and get care. But when you talk to incarcerated people, they routinely tell you that their sick call requests go unanswered, or they have to submit multiple sick call requests just to get a response, or they may get a response that says, ‘Here’s some Tylenol,’ but it isn’t really an assessment or care for COVID. In some cases, those sick call requests get thrown out. And so we have this group of people who, when they seek care for COVID-19, they must use this process to access care. It’s a system that’s broken.

The current COVID hotspots in the BOP system are Fort Dix, Bastrop, Springfield, Tucson, Thompson and Butner, all with over 100 inmate cases each. As of yesterday, the BOP reports it has tested 48.8% of all inmates. The positivity rate remains at 25.6%.

The Appeal, Coronavirus in Jails and Prisons (November 6, 2020)

WHYY Radio, COVID-19 outbreak inside Fort Dix prison is spreading (November 7, 2020)

Burlington County Times, U.S. attorneys for Fort Dix ordered to detail COVID-19 response; cases at prison top 200 (November 5, 2020)

Memorandum Order, R.24, November 3, 2020, Whiteside v. Fort Dix Federal Prison, Case No 1:20cv5544 (Dist. New Jersey)

– Thomas L. Root

ACLU Brings Second FCC Butner Suit Over COVID – Update for November 2, 2020

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

ACLU CLAIMS BOP COVID TESTING STRATEGY IS ‘INCOHERENT’

A coalition of civil rights groups led by the American Civil Liberties Union filed a class-action lawsuit against the Federal Bureau of Prisons last week over its handling of COVID-19 outbreaks at FCC Butner. The suit seeks an injunction to protect Butner prisoners, especially “vulnerable people… who, because of their medical conditions and/or advanced age, are at higher risk of severe injury or death from COVID-19.”

suit201102The lawsuit alleges that the BOP has “tested too few people at Butner, too infrequently, and too late,” and fails “to separate people who tested positive from those who tested negative for several days after receiving the test results.” The suit claims screening for symptoms has also been sporadic and ineffectual. The claims include allegations of inadequate cleaning and disinfecting procedures to adequately protect the men housed at Butner. As well, the allegations take aim at BOP management of CARES Act home confinement and compassionate release:

Despite direction from the US Attorney General months ago to expeditiously consider medically vulnerable people for home confinement or other release, Defendants continue to oppose motions for compassionate release made by medically vulnerable people, and they have failed to order furloughs or transfers to home confinement with sufficient speed and in sufficient numbers.

FCC Butner, located about 25 miles north of Raleigh, North Carolina, holds nearly 4,000 male inmates, with five facilities: a medical center, a minimum-security camp, a low-security prison and two medium-security facilities.

The civil rights groups filed suit against the BOP last spring, alleging that officials have failed to protect the Butner population. In early June, a federal judge sided with the BOP, agreeing it had “made reasonable efforts” to control the virus.

In another suit, Lompoc prison officials were ordered by a Los Angeles federal judge three weeks ago to expedite the evaluation of more than 120 inmates deemed eligible for home confinement due to their risks of COVID-19, although only 44 have been released since July. Five inmates brought the federal class-action lawsuit last May, seeking alternative confinement after a COVID outbreak at Lompoc infected more than 1,000 inmates and staff. At least four inmates died as a result of the outbreak.

The October 8 order directed the BOP to confirm that all 129 eligible inmates were released to home confinement.

expert160905The BOP had argued there is no specified timeline to release inmates to home confinement and that such release requires a three-judge panel, according to the response included in the Oct. 8 filing. Meanwhile, last Friday the agency blasted a court-ordered report by Dr. Homer Venters, countering with its own expert who concluded that “FCC Lompoc has acted reasonably and diligently in dealing with the COVID-19 pandemic based on the CDC guidance and BOP guidance applicable at the time, including the comprehensive BOP COVID-19 Pandemic Response Plan.” The expert complained that Dr. Venters “consistently bases his critical conclusions on unverified statements that were made to him by unidentified inmates, despite the harsh judicial criticism that he recently received in an Eastern District of New York COVID-19 case for following that unreliable methodology.”

The BOP’s COVID numbers – 1,766 sick inmates as of last Friday – are down 7% from a week ago. But ominously, the number of sick staff continues to climb, hitting 896 on Friday. A month ago, there were 724 sick staff. Nationwide, 75% of all prison and jail staff cases since March have recovered. But only 60% of BOP staff cases have done so, suggesting that BOP staff COVID cases are increasing at a much faster rate than the rest of the country. This is critical, because the staff is the primary means by which COVID is being brought into facilities.

Circumstances surrounding the latest inmate COVID-19 death, Joe McDuffie at El Reno, are concerning. Joe tested negative for COVID on Oct 13. After that, according to the BOP, “he received daily symptom checks and did not express any symptoms associated with COVID-19. On Friday, October 23, 2020, institution staff found Mr. McDuffie unresponsive.” He died later that day.

The BOP says 46% of the inmate population has been tested for COVID. One out of four of those 69,500 tests has been positive.

Hallinan v. Scarantino, Case No 5:20-ct-3333 (ED NC, filed Oct 26, 2020)

The Appeal, Coronavirus in Jails and Prisons (October 28, 2020)

BOP, Inmate Death at El Reno (October 29, 2020)

Santa Maria Times, Lompoc prison officials release 44 inmates to home confinement; more than 120 deemed eligible (October 30, 2020)

Respondents’ Statement, Torres v. Milusnic, Case No 20cv4450 (CD California, October 30, 2020)

– Thomas L. Root

Adding Family Insult to Injury, BOP-style – Update for October 22, 2020

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

COVID NUMBER NOT REASSURING… NEITHER ARE BOP DEATH NOTIFICATION PROTOCOLS

As of yesterday, the BOP was reporting 1,750 federal inmate COVID-19 cases in BOP and private prisons (up 6% from last week), 802 staff cases (up 9%), COVID still present in 118 out of 122 facilities, and one more death, for a total of 136. With 44% of all inmates tested, one out of four tests is still coming back positive.

covid19-201022

Just as Wisconsin is now spiking in new COVID cases, FCI Oxford led BOP facilities as of Oct 16th with 409 inmate cases, followed by El Reno (108 cases), Petersburg Medium (89), Tallahassee (88), Big Spring (79), Pekin (74), Leavenworth (73) and Oklahoma City (61). Sixteen more BOP joints have between 10 and 48 cases.

Three days before, the BOP announced the death of a Big Springs inmate, and noted that the facility had 398 inmate COVID cases. Over 300 inmates apparently recovered in merely three days.

The family of Tommy Sisk, the Petersburg inmate who died of COVID October 4, blasted the BOP last week for not notifying them of his death. They found out that their loved one had died when a family friend called them last Tuesday to say he had seen the death reported in a newspaper. That was a full week after the BOP issued a press release about Tommy’s passing.

tears201022Tommy’s brother Wayne Sisk said a representative from FCI Petersburg told him his sister was listed and tried to call her. “What freed up that information,” he asked about the Oct 6 BOP press release, “but they couldn’t free up the information to tell his family and notify them before the newspaper. During the times that we live in now, with COVID and injustices and everything… tell me how much injustice is that?”

As of last weekend, the BOP still had not told the family the location of the body. “They should’ve contacted our family and showed us some respect. We don’t have our brother. We don’t have anything,” Sisk said. “We don’t have our family member.” Perhaps the BOP intends to have Mr. Sisk’s body serve the remainder of his sentence before burial.

The BOP told a Richmond TV station, ““While for privacy reasons we cannot speak about specific circumstances surrounding a particular inmate, we can tell you protocols were followed in the case you reference.”

Of that I have no doubt. Perhaps the protocols should be leavened with a little human decency.

San Angelo Live, Nearly Half of Big Spring Prison Inmates Have COVID-19 (Oct 13)

WFXR-TV, Brother of inmate who died of COVID-19 demands answers: ‘We found out from a news article’ (October 17, 2020)

– Thomas L. Root

Conflicting Signals on Recalling CARES Act Home Confinees – Update for October 19, 2020

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

THIS IS KIND OF TROUBLING

comeback201019At a hearing on an inmate’s motion for compassionate release last August, Dept of Justice attorney Michael P. McCarthy made a chilling statement about the Bureau of Prisons’ CARES Act home confinement program: “The defendant is being re-evaluated once he crosses that (50%) threshold and at that point potentially transferred to home confinement. Now, I want to be clear that in the BOP’s program, it’s a transfer until the end of the pandemic and then a return to prison if the pandemic is declared over…”

Writing in Forbes magazine last week, Walter Pavlo said, “While everyone wants an end to the pandemic, those on home confinement may be told that they will be returning to prison … or they could be asked to be immunized in order to return …. or the inmate could refuse immunization …. or the inmate may have only a few months remaining by the end of the pandemic and might file an appeal.”

trumplie201019Pavlo noted that FAMM president Kevin Ring told him a White House source said a return of home confinement people to prison after the pandemic ends – whenever that is – “will NOT be happening.” But White House assertions (remember President Trump’s promised 3,000 clemencies?) have a way of being wrong. The risk of reincarceration seemed real enough that the House of Representatives included a provision in last May’s HEROES Act that no one “granted placement in community supervision, termination of supervision, placement on administrative supervision, or pre-trial release shall be re-incarcerated, placed on supervision or active supervision, or ordered detained pre-trial only as a result of the expiration of the national emergency relating to a communicable disease.”

The HEROES Act stands no chance of passage in the Senate.

Ohio State University law professor Doug Berman, writing in his Sentencing Law and Policy blog, said last week, “Because of the opaque nature of BOP work and data, it is difficult to tell just how many persons have been transferred into home confinement and what percentage of these persons might have long enough still remain on their original sentences to perhaps prompt DOJ to seek their return to prison whenever the pandemic if over.”

Forbes, US Attorney States Federal Inmates On Home Confinement Will Return To Prison Once “Pandemic Is Declared Over” (Oct 15)

Sec 191102(f), HEROES Act, HR 6800

Sentencing Law and Policy, Will some (most? all?) federal prisoners transferred to home confinement be returned to prison after the pandemic ends? (Oct 16)

– Thomas L. Root